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Focus On Discrimination As Governments Tighten Laws

It is reasonable in civil society to try and prevent anyone publicly inciting racial hatred or contempt for a person or group of people on the basis of race, religion or ethnicity.

But when it comes to putting this into law there will be an inevitable clash with those who say we should be able to say pretty well whatever we want in the name of free speech.

NSW Premier Barry O’Farrell has ordered an inquiry to consider strengthening anti-discrimination laws to make it easier to convict people for serious racial vilification. He’s reportedly concerned there’s never been a prosecution under Section 20D of the NSW Anti-Discrimination Act since it became law in 1989. The penalties under that law are quite severe; fines up to $5500 and six months’ jail.

The suggestion is that the legislation requires proof ‘beyond reasonable doubt’ for threatening physical harm or inciting others to do so on the basis of race, and this was too difficult to establish.

At the same time, the Federal government is moving to amalgamate five anti-discrimination laws into the proposed Anti-Discrimination and Human Rights Bill 2012. While most observers welcome the move, some of the proposals are causing a stir.

One is to shift the onus of proof so that not only the complainant has to establish discrimination, but also the accused has to establish they were not being discriminatory.

The government will also continue religious exemptions so religious bodies can discriminate on religious grounds.

It’s feared by some that the new laws could define discrimination using a subjective test of whether someone feels offended or insulted by what someone says publicly. Some are saying this amounts to a new threat to free speech.

But the chairman of Stacks Law Firm, Maurie Stack OAM, a former president of the NSW Law Society, says there have to be limits to what can be said in public.

“It should be an offence to incite hatred, contempt or ridicule of a person or group on the basis of not only race but also membership of any group, and it should be an offence regardless of whether physical harm is threatened or incited,” Mr Stack said.

“History tells us that public opinion about a minority group can be easily swayed by persistent adverse comments, and that then lays the groundwork for physical mistreatment of that group by extreme elements in any society and even by governments.

“Racism involves the erroneous assumption that all members of a particular group are the same, whereas people just cannot be categorised that way.”

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